SHOOT UP FIRST, ANSWER QUESTIONS LATER

part 2 of 2
Back at police headquarters, Komesu was singing like a canary. He admitted that he was a morphine addict, Kuretich says, and he admitted forging prescriptions.

"He said he'd taken a large amount of morphine so he could start slowly decreasing his use," Kuretich says. "And he said he had fifty syringes of morphine at his house."

Kuretich and John Gray (a Denver police detective assigned to the DEA task force) went to Komesu's house to search for evidence. They found only a saline solution, which Komesu said was used to dilute the morphine. The house was almost empty of furniture and everything else. Mary and the morphine were gone.

Later that same day, when Mary Komesu phoned her husband at jail, the police traced her call to a Fort Morgan discount store and intercepted her there. According to Kuretich, Mary Komesu was persuaded to take the officers to a motel where she'd hidden the drugs under sheets and blankets. She would later be convicted on drug-possession charges and placed on six years' probation.

Kuretich says Mary Komesu told the police that the stash in the motel room represented the last of the drugs. But investigators declined to take her at her word. Neighbors had reported seeing a moving van in front of the Komesus' driveway days earlier, and investigators believed that Komesu might have been planning to ship drugs (along with his furniture and household goods) to Hawaii. After making a slew of calls, investigators discovered that the Komesus' belongings were in a Loveland warehouse, awaiting shipment to Maui.

It was in that warehouse--packed among toys and hidden in boxes of cereal--that police found Komesu's weapons and the vast quantity of drugs he'd stolen.

Andrew Komesu gives the impression of being conflicted about his arrest and its aftermath. In some ways, he describes it as a blessing. "I think I had to be locked up in jail to get off," he says. "To be honest, what happened was probably the best for me. I think it was harsh--it separated me from my family and destroyed me financially, but I am still alive. I don't think I would be now if it had not happened."

His arrest forced Komesu to kick drugs--cold turkey--in the Morgan County Jail. The pharmacist's withdrawal symptoms were severe enough, Kuretich says, that during the first weeks of his incarceration--before his release on bond in early June--Komesu was twice taken to the hospital for treatment.

But there is a part of Komesu that resents the way his case was handled. "When it happened," he says, "I thought I was treated like dirt."

Komesu had never before been arrested. And despite the fact that investigators suspected that his large cache of drugs--coupled with the presence of weapons--indicated that he might have been peddling narcotics, Komesu has always claimed that the drugs were for his own use.

"I was going to take it to Hawaii and detox there," he says. The 27,800 doses "could have been a six-month supply--maybe eight."

His math, however, does not compute. Even if Komesu had maintained his astounding 800-milligram-a-day habit, his supply would have lasted him almost a year.

As for the weapons, says Komesu, "I used to be a gun collector, which I know is politically incorrect." The assault rifles, he says, had never been fired or used. "They were in storage and not even accessible to me," he insists. "And they had nothing to do with the drugs."

But investigators expressed concern that Komesu was apparently in the process of converting the guns to automatic fire--making them more dangerous and perhaps more valuable--when they were confiscated. And, the agents point out, the guns were in storage only because Komesu was leaving the state.

The very presence of weapons, combined with the drug charges, caused Komesu to be considered a "special offender," placing his charges--and any subsequent sentence--in the "aggravated" range. He could have received 24 to 48 years in prison for that reason alone. And, Komesu says, he would have been ineligible for "good time," which could have cut any sentence in half.

After Komesu's arrest, District Attorney Chris Hefty met with law enforcement officials and representatives of the U.S. Attorney's office to determine the best way to proceed.

"We felt that if we succeeded in prosecuting him on the state level," Hefty says, "that everybody would be satisfied with the outcome." In the end, very few people were satisfied.

After a great deal of haggling between Hefty and Komesu's attorney, Michael Cohen of Westminster, the two agreed on a plea bargain. Komesu would not be tried in federal court. The weapons charges would be dropped. The DA would ask for a five- to twenty-year sentence. And though both sides agreed that probation was not a possibility, Komesu (like all defendants) did retain an opening: He would be allowed to petition the court for a sentence reconsideration within a few months of his incarceration.

Komesu pled guilty to the charges on September 16, 1994, but he was granted a long period of time before sentencing so that he could spend the coming holidays with his wife and children. He was to be formally sentenced in early January.

Unbeknownst to the district attorney, however, Komesu was working as a druggist at a major Denver hospital even while his attorney negotiated his fate--and even after he pled guilty.

The DEA had notified the Colorado Board of Pharmacy of Andrew Komesu's arrest shortly after it occurred. And on June 17, 1994, the board moved to summarily suspend Komesu's license. But according to board spokesman Lansin Carmean, the necessary paperwork was not drafted and served until July 14--four days after Komesu was hired on as a pharmacist at Presbyterian/St. Luke's Medical Center in Denver.

When Komesu applied for the position, says hospital spokesman Brad Bawmann, "we did the appropriate background and license checks, and he was clean." But, Bawmann adds, Komesu never mentioned that he'd been arrested and charged with stealing more than two gallons of morphine.

Komesu claims he checked on the status of his license before accepting the job at P/SL and that he was told it had not been suspended.

P/SL officials did not learn of Komesu's legal difficulties until mid-October, when a Fort Morgan reporter (who'd been checking out a tip about Komesu) informed them that the pharmacist had pled guilty to--and was awaiting sentencing on--25 felonies. Komesu was immediately sacked. And when the DEA got wind of the situation (at about the same time as the hospital learned of the charges against him), the federal agents arrested Komesu on a misdemeanor charge of practicing pharmacy without a license. (Bawmann says that Komesu was a "model employee" during his four months there and that a subsequent inventory of supplies did not turn up any drug shortages.)

Many drug abusers enter treatment programs shortly after arrest--it looks good to a judge. But Komesu did not enter rehabilitation until December 21, just three weeks before his initially scheduled sentencing date, despite his attorney's claim at a bond-reduction hearing in May 1994 that Komesu "is fully aware of his need to enroll in a drug rehabilitation program as soon as he is released."

Despite his short enrollment in a California-based treatment center, his supervising physician gave Komesu a rave review. "He is making extremely good progress in dealing with his addiction," wrote Dr. Robert Saltzman in a January 2 letter to the court. "He is very active in the treatment program and plans to return to work as soon as possible. I would be happy to assist Andrew find work as a pharmacist in any way I can."

Because the treatment he'd chosen involved a ninety-day residential portion, Komesu asked the court to postpone his sentencing so he could complete the term. The judge balked--it was already four months after Komesu's guilty plea--but the sentencing was reset to late February, anyway, due to a technicality.

Judge Douglas Vannoy did his homework before sentencing Andrew Komesu, but some people in Fort Morgan would probably flunk him for it.

At the long-delayed sentencing hearing, held on February 24, Vannoy expressed concern that probation was not being offered as an option for Komesu. The judge said he'd inspected 25 Morgan County drug cases, 23 of which involved plea bargains. Probation was guaranteed in eleven of them; nine defendants had been granted deferred judgment. In only three cases, Vannoy noted, were the defendants ordered to do prison time; sentencing of the remaining two was left to the judge's discretion.

According to state law, judges have no duty to accept a plea bargain. They are, in fact, directed to exercise independent judgment in deciding whether to grant charge and sentence concessions. But it is incumbent on the judge to let the attorneys know if he disagrees with the plea agreement, says Hefty. That never happened.

Despite his stated reservations, Vannoy officially accepted the plea bargain, even though he chose to sentence the pharmacist at the low end of the previously-agreed-to range. Komesu got five years and was taken immediately to the Morgan County Jail for later transfer to the state Department of Corrections.

The plea bargain Hefty had struck did not preclude Komesu's attorney, Cohen, from asking for a reconsideration hearing. And on May 19, 1994 (little more than a year after Komesu's arrest), Cohen did just that. By that time, Komesu had spent 102 days behind bars, an amount Cohen considered a "significant punishment." Komesu had served all that time in the smaller and less grim county jail because his transfer to the Department of Corrections was delayed due to insufficient bed space in the state prison system. Nevertheless, Cohen decried the fact that the local jail offered neither rehab nor the same privileges available to inmates in the Big House.

Judges routinely deny requests for reconsideration hearings. Vannoy did not. And it was when the judge set a date for the hearing, Hefty says, that he knew what was going to happen next.

On July 3, Komesu, Cohen, a probation officer and Deputy District Attorney Deborah Shutter gathered for the hearing. (Hefty, who'd broken his leg, was unable to attend.) No one from the press, the police or the DEA was present, a fact the judge would stress in his ruling. At the initial sentencing, Vannoy noted that in the July hearing, "I had the chief of police; I had Lieutenant Forbes; I had representatives of the hospital. Now I've got nobody here. Now, that doesn't change my view of the case, but I think it's interesting to note that." (Shutter was given a short recess to contact the police department to see if anyone wished to attend; Sergeant Kuretich then rushed to the courtroom. The sergeant, however, was not called to comment on the case.)

Vannoy defends his handling of the case--and of proceeding with the reconsideration hearing despite the absence of interested parties. Neither side, he notes, asked for a continuance.

But the absence of some of the concerned parties happened for a good reason: Hefty had failed to notify the police and the DEA that a hearing had been set. "It was my mistake," Hefty admits now. "But the truth is, I don't think it would have made any difference." The judge, he says, had already made up his mind to release Komesu.

"Now, I recognize that this is a professional before me who has serious responsibility to the community," Vannoy told the gathering. "And I recognize that he violated that responsibility in a very egregious fashion. I recognize that he had huge quantities of drugs that he had stolen from the pharmacy at the hospital. The restitution is over $13,000. And I'm not condoning any of it."

But, Vannoy continued, Komesu's sentence seemed inconsistent with those in other drug cases. Since the initial sentencing, Vannoy said, he'd looked into 7 drug cases in addition to the 25 he'd studied previously. In all, twenty of those defendants received either probation or a deferred sentence. One seven-year-old case involved another Fort Morgan pharmacist who'd taken drugs from his pharmacy. And that man, Vannoy said, was placed on supervision for one year, at the end of which the case was dismissed.

"I felt when I sentenced Mr. Komesu that he should have some prison experience," Vannoy said, but the time he'd served was enough to satisfy the judge. Vannoy suspended the balance of Komesu's sentence and ordered him to serve six years' probation.

Vannoy's ruling, Komesu says, represented "the happiest moment in my life." Cohen was pleased as well: "I felt a real injustice had happened to him." Other drug-addicted pharmacists, Cohen said, have been treated much more leniently than had Komesu.

Hefty professes to be none too happy.
If Vannoy had said in the beginning that he wouldn't accept the plea bargain, Hefty complains, "we would have gone to trial. If the judge had a preconceived notion of what the sentence should be, he should have been up front with us. We could have gone ahead with state and federal prosecution or asked for another judge.

"This guy got out of federal prosecution because the judge accepted the deal. In my opinion, we got cheated. I'll never make a deal like this again."

In addition, Hefty argues, it is futile to strive for consistency in sentencing drug offenders. "Drug cases are all different, factually," the DA says. "A lot of times a guy might get probation, but the judge doesn't understand the defendant got a deal because sometimes you have to go easy on one person so they'll roll over on the guy somewhere on down the chain."

Numbers mean nothing, Hefty adds, "if you ignore the facts behind them."
And indeed, it does appear that Vannoy overlooked a couple of important facts in those drug cases he'd reviewed. Of the 28 defendants who received probation, ten subsequently violated probation (primarily by using drugs or refusing to submit to urinalysis). At least one of them has fled the area. And though the judge noted that the amount of drugs a defendant possessed has not always been a sentencing factor, many of those granted probation had been caught with a small amount of speed or a bindle of cocaine.

Privately, police and DEA officials admit to being angry and frustrated about the Komesu case, although their comments for the record are more sanguine. "The wisdom of one branch of the justice system is not always apparent to the other," says DEA spokesman Carl Hinds.

"We'll never know how much danger [Komesu] put patients in while he was at the hospital," says Fort Morgan police chief Harold Davisson. "We were opposed to anything less than five years in prison. Had we known a resentence hearing had been set, we would have had people there in the courtroom to oppose it. That's pretty much our stance."

"I don't agree with the judge on this case," echoes Kuretich. "I do respect that he took into account the twenty or so drug cases he felt were related and that he based his decision on that. But maybe what we've got is a poor prosecutorial track record." Perhaps, the sergeant suggests, the district attorney's office has been too willing to make deals.

Hefty has until August 18 to appeal Vannoy's decision. He says he is mulling that over now. The Court of Appeals, he notes, "is tough. I don't think there's much chance of winning." Upon his release from jail, Komesu beat a hasty retreat out of Colorado and back to Los Angeles. The pharmacist, says Hefty, "is a con man" who probably "laughed all the way out of Colorado."

Komesu has held a California pharmacist's license since 1982, and the Colorado case has not yet affected his status there. He denies he is presently working in any occupation, let alone as a druggist, but the DEA and the California Pharmacy Board believe he might be employed as a pharmacist in the L.A. area. A spokeswoman for the California board says it is investigating the DEA's concerns and will take action if and when they learn more about Komesu's conviction and the drug-abuse treatment program in which he has reportedly enrolled.

Komesu says he's taking his recovery "one step at a time. I've been clean for a year and a half. It's not like I battle with this every day. I'm getting back on my feet. My whole confidence has been shaken."

Despite his apparent good fortune at not having to spend time in a federal or state prison, Komesu continues to harbor resentment toward the Fort Morgan police and the Morgan County DA. He doesn't think he should have had to serve any time in jail.

"I feel like I got a bad deal there," he says. "It was blown out of proportion. I have no sense of security. And I don't trust the justice system."

end of part 2

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